Long academic paper published in the University of Chicago Law Review Winter 2001 questioning the contention of Justice Clarence Thomas that the original meaning of to regulate interstate commerce was very narrow in scope:

While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of "among the several States" and "To regulate" also supports a narrow reading of the Commerce Clause. "Among the several States" meant between persons of one state and another; and "To regulate" generally meant "to make regular"--that is, to specify how an activity may be transacted--when applied to domestic commerce... In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade."

"GIVEN the very real possibility that the Supreme Court will overturn the Affordable Care Act, liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress. This is especially likely given the relative youth of the bloc’s conservative members: an average of 66 years old, when the last 10 justices to retire did so at an average age of 78.

The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.

The idea isn’t new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits. The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land? "

"GIVEN the very real possibility that the Supreme Court will overturn the Affordable Care Act, liberals are concerned that the right-wing tilt of five justices and lifelong appointments ensure a decades-long assault on the power of Congress. This is especially likely given the relative youth of the bloc’s conservative members: an average of 66 years old, when the last 10 justices to retire did so at an average age of 78.

The situation brings to mind a proposal voiced most prominently by Gov. Rick Perry during his run for the Republican presidential nomination: judicial term limits.

The idea isn’t new. High-ranking judges in all major nations, and all 50 states, are subject to age or term limits. The power to invalidate legislation is, in a sense, the ultimate political power, and mortals who exercise it need constraint. So why not the highest court in the land? "

And another idea, how about the system we have now. I haven't seen any stay too long lately, just ones that I didn't like in the first place.

The proposal does address one point making recusal nearly impossible on the close cases - there currently is no one to take their place.

Currently we have appointment by an elected official and confirmation by elected officials. We have Justices stepping down voluntarily in old age; hard to hide mental deterioration from your peers in that business - except when the starting point is too low. I think we just need to be ready for impeachment by the elected branch if and when justified. For reasons such as deciding cases for the wrong reasons, international law or precedent for example.

I think we just need to be ready for impeachment by the elected branch if and when justified. For reasons such as deciding cases for the wrong reasons, international law or precedent for example.

Surely you jest? You would impeach a Supreme Court Justice because you don't agree with their decision on a case? Would you impeach five or more of them if they were in the majority? Or only one or two if they they were in the minority. Don't be ridiculous.

"A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution.

Article III, Section 1 states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness 'high crimes and misdemeanors" encompasses. "

Are you suggesting the constitution isn't a "living document" to be used to whatever ends anyone wishes at anytime?

Actually I was merely laughing at the absurdity of impeachment merely because Doug IHHO disagrees with the ruling.

As for the concept of "living document" it's rather interesting. We/You'll seem to love Jefferson on this site, so......

Thomas Jefferson wrote, "I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors."

JDN.A. Don't post hypotheticals regarding my business - last time the inference was discrimination and this time some botched analogy to terror. That's enough. I'll post stories from my business and you from yours.B. Again you say I said what i didn't "...impeachment merely because Doug IHHO disagrees with the ruling." That isn't what I wrote, what a jackass, so leave my name out of your posts because you can not get it right.C. re: [Thomas Jefferson wrote, "I am not an advocate for frequent changes in laws and constitutions..."] - Nothing in that indicates support for changing the constitution OUTSIDE of the amendment process as this string of cases is striving to do. The constitution lived through changes of abolishing slavery, establishing an income tax, trying prohibition, ending prohibition, and they failed to end all differentiation on gender in the unratified ERA. The amendment process works. Use it and stop trying to change with simple majorities what constitutionally requires supermajorities. What good is a constitution if the words that have no meaning.

A. Since you introduced the subject of your business (property rental ownership) over and over again, I'll post and introduce the subject as I see fit. As for my "botched analogy to terror" what in the heck are your talking about? I looked above on this string and saw nothing related to what you are talking about.B. Did you read your post; I'm still laughing at the absurdity of your post. You would impeach Justice(s) because they "decided cases for the wrong reasons"? I presume it depends upon YHO they are the "wrong reasons"? And Doug, I'll quote you as often as I like.

C. I think you should reread Jefferson's words. "As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times." Nothing is indicated that change cannot take place OUTSIDE the constitution either. "Jefferson often sneered at the "sanctimonious reverence" some would hold for a mere historic document." Jefferson was forward looking; he believed the Constitution to be a living document.... Times change; we have become "more enlightened..." and "opinions change...". It's called progress Doug.

Like Jefferson, "Justice Oliver Wendell Holmes (of "falsely shouting fire in a theater" fame) argued that the Constitution "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Holmes said the law was not a matter of absolutes but of the "felt necessities of the time," to be justified by how it contributes "toward reaching a social end."

"A Supreme Court Justice may be impeached by the House of Representatives and removed from office if convicted in a Senate trial, but only for the same types of offenses that would trigger impeachment proceedings for any other government official under Articles I and II of the Constitution.

Article III, Section 1 states that judges of Article III courts shall hold their offices "during good behavior." "The phrase "good behavior" has been interpreted by the courts to equate to the same level of seriousness 'high crimes and misdemeanors" encompasses. "

And then:

Like Jefferson, "Justice Oliver Wendell Holmes (of "falsely shouting fire in a theater" fame) argued that the Constitution "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Holmes said the law was not a matter of absolutes but of the "felt necessities of the time," to be justified by how it contributes "toward reaching a social end."

Impressive! Most people aren't able to argue against themselves in the same thread. I guess if we want to impeach a justice, it's constitutional if it"contributes toward reaching a social end".

GM, my point was that if they violate their oath of office which I assume includes swearing to uphold the constitution, then the elected branch already has a recourse available.

For the sloppy reader false quote guy, make sure you read the word IF in that statement. And nowhere does anything I wrote suggest impeachment for disagreeing with me. The lying cheapens the board and the discussion.

The oath below, as noted, is the second oath taken by a federal judge, including the USSC justices. More (interesting) discussion is found by clicking the link.

The Judicial Oath

The origin of the second oath is found in the Judiciary Act of 1789, which reads "the justices of the Supreme Court, and the district judges, before they proceed to execute the duties of their respective offices" to take a second oath or affirmation. From 1789 to 1990, the original text used for this oath (1 Stat. 76 § was:

"I, _________, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________, according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States. So help me God."

In December 1990, the Judicial Improvements Act of 1990 replaced the phrase "according to the best of my abilities and understanding, agreeably to the Constitution" with "under the Constitution." The revised Judicial Oath, found at 28 U. S. C. § 453, reads:

"I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God."

GM, my point was that if they violate their oath of office which I assume includes swearing to uphold the constitution, then the elected branch already has a recourse available.

For the sloppy reader false quote guy, make sure you read the word IF in that statement. And nowhere does anything I wrote suggest impeachment for disagreeing with me. The lying cheapens the board and the discussion.

Currently we have appointment by an elected official and confirmation by elected officials. We have Justices stepping down voluntarily in old age; hard to hide mental deterioration from your peers in that business - except when the starting point is too low. I think we just need to be ready for impeachment by the elected branch if and when justified. For reasons such as deciding cases for the wrong reasons, international law or precedent for example.

[/b]

"For reasons such as deciding cases for the wrong reasons" And who decides it's the "wrong reason"? You?

Or, "or precedent for example." Wow, are you suggesting that we impeach Justices because they decide cases because of "precedent"?

As for their oath Supreme Court Justices take, as Bigdog pointed out, "I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God." that is what they are doing. I don't have to agree with their interpretation, but then neither do you. It's the law if the majority says it's the law. I may not like it if the Court overturns Obamacare. Just like some don't like Roe vs. Wade. But it's the law. Accept it and move on. No one has been or will be impeached in either situation. That's how our Constitution works.

That is: international law or [intenational] precedent, using these REASONS for decisions instead of or ahead of upholding the constitution would be a violation of their oath of office and reason if true and proven IMHO to initiate impeachment.

At least two justices have given public indications that is their thinking. I will read the health care opinions in particular for evidence of that. Don't worry so much about what I think, I have no vote in the House or in the Senate and I assume a supermajority of both would be required.

When you begin to come to grips with my opinion, rather than distort it why don't you begin to post YOURS. Logic preferred over emoticons.

Notice Doug you didn't say "international precedent" the first time you posted; I'm sure glad I'm able to quote.

My opinion (you asked) is that I support the right of the judiciary to independent opinion; whether I agree with them or not. For example, I agree with Obamacare, but the Court may over turn it; I accept that. Just like others may disagree with Roe vs. Wade or... they too should accept it. Simply saying I don't like the decision is no reason to even consider impeachment. Disagreeing is not "high crimes".

As for your opinion, you sound like you would been one of those right wing zealots supporting McCarthyism in Georgia.

Only one Supreme Court Justice, Samuel Chase (one of the signatories to the Declaration of Independence), has ever been impeached. The House of Representatives accused Chase of letting his Federalist political leanings affect his rulings, and served him with eight articles of impeachment in late 1804. The Senate acquitted him of all charges in 1805, establishing the right of the judiciary to independent opinion. Chase continued on the Court until his death in June 1811.

In 1957, at the height of McCarthyism, the Georgia General Assembly passed a joint resolution calling for "The Impeachment of Certain U.S. Supreme Court Justices" believed to be enabling Communism with their decisions. The resolution targeted Chief Justice Earl Warren and Associate Justices Hugo Black, William O. Douglas, Tom Campbell Clark, Felix Frankfurter, and Stanley Forman Reed (as well as several unnamed deceased Justices) for "...[usurping] the congressional power to make law in violation of Article I, Sections I and 8, and violated Sections 3 and 5 of the 14th Amendment and nullified the 10th Amendment of the Constitution."

I wrote international law or precedent. 'Notice Doug you didn't say "international precedent" ' Applying one adjective to conjoined nouns was intended for the lower triple digits. Please disregard if that doesn't apply to you.

"Simply saying I don't like the decision is no reason to even consider impeachment."

More arguing in redundancy over things I didn't say. A waste of time.

"you sound like you would been one of those right wing zealots supporting McCarthyism in Georgia."

Perhaps my judgment is affected by the vapors of German beer here in the bar-lobby here in Munich JDN, but I think you are misapprehending what Doug said. FWIW, my sense of the English language is that "international" applied to precedent as well.

As my Constitutional Law prof's recent interview made rather clear, she does not really believe in the US Constitution, nor in my opinion is she alone on the Court in this.

IMO the intention is to pretend that citing international law as an influence is no different to referring to another state's law in reasoning a de novo question presented in a state law case. IMO it is QUITE different. The intention is NOT to honestly reason about the US Constitution, about which people can reasonably disagree without impeachment being a reasonable issue, the intention is to SUBVERT the US Constitution. As a logical matter, I can see this as a basis for impeachment and conviction. As a practical matter however, the practical difficulties to making the case would be EXTREMELY destructive to our social fabric.

Taking some discussion from the Presidential 2012 thread over to here.

Asked: "The authority to make such a move [selective privater company bailouts and investments] is contained in Article ___ of the constitution?"

Court citations?------------Other bailouts were going on at that time like AIG, Bear Stearns. I recall a congressional committee questioning the Treasury Secretary and Fed Chair (video link below) about where they derived that authority [to bail out non-financial institutions]. Which provision in the constitution gives authority to the Treasury for the extraordinary actions taken? Geithner literally could not grasp the question much less the answer, kept answering that congress had authorized it. Bernancke pointed to congressional right to authorize funds as they did in TARP to the 1930s legislation for emergency lending in financial crisis. Could not point to a constitutional limit on that authority. "The actions we've taken have been solely and entirely in the interest of protecting the American economy from financial collapse." A brokerage here, an insurance company there. General Motors not mentioned. Ends justify means.Video: http://www.youtube.com/watch?v=wSWztq4yc_U Interesting question and non-answers, that's all.

If congress has the power to authorize funds, is there no limit on how it is spent?

The equal protection clause limits the powers of States: 'No State shall... deny to any person within its jurisdiction the equal protection of the laws.'

Is there an unenumerated right to equal treatment from the federal government or where does the constitution limit the federal government from picking winners and losers in the private economy, to pick a better connected competitor and give them competitive advantage over you to survive and to prosper. No limits?

Perhaps it comes back to powers that were never granted to congress or the executive in the first place. Did the power to regulate interstate commerce in our founding mean the power to alter the playing field in favor of certain players, at the disadvantage of others in private commerce including private commercial, legal contracts, such as the position of the secured bondholders of General Motors?

Did "promote the general Welfare" and "those things of a general welfare that they could not provide themselves" mean no limits? Bernancke referred to a "practical limit", his power to manage monetary policy, including fabrication of money into the multiples of trillions. Congress likewise. Not even limited by whjat they can agree to tax. No other limits? Really??

JDN wrote about the GM bailout: "A few suffered in exchange for the greater good. Hundreds of thousands of jobs were saved especially if you look downstream at suppliers, etc."

I disagree with the result, but let's say he is right about the ends, where was the power to do that authorized in the constitution?

What is the lawyer’s genius — the talent that distinguishes us from other professions? Movies and television suggest that it is more than legal knowledge and technical skills; it is the way lawyers use creativity and cunning to outwit their adversaries. Lawyers in films and television act much like the Trickster figure in mythology and folklore. Moreover, study of the professional lives of the best real life lawyers reveals these same trickster talents. The paper argues that lawyers should embrace the trickster identity because it celebrates the valuable contributions lawyers make to the public good.

In a different way, though, Citizens United is a distinctive product of the Roberts Court. The decision followed a lengthy and bitter behind-the-scenes struggle among the Justices that produced both secret unpublished opinions and a rare reargument of a case. The case, too, reflects the aggressive conservative judicial activism of the Roberts Court. It was once liberals who were associated with using the courts to overturn the work of the democratically elected branches of government, but the current Court has matched contempt for Congress with a disdain for many of the Court’s own precedents. When the Court announced its final ruling on Citizens United, on January 21, 2010, the vote was five to four and the majority opinion was written by Anthony Kennedy. Above all, though, the result represented a triumph for Chief Justice Roberts. Even without writing the opinion, Roberts, more than anyone, shaped what the Court did. As American politics assumes its new form in the post-Citizens United era, the credit or the blame goes mostly to him.

Haven't read the Trickster piece yet (though the premise seems quite promising and appealing to this Jungian) but I have read the Citizens United piece.

I readily grant it is fascinating but find tedious having to continuously filter out the author's specious reasoning and spurious assertions of moral and legal parity between overturning legislation that violates the C with the overrunning of legislation in the name of liberal biases.

The fundamental problem is the the decision upholding McCain Feingold was a huge error. M-F should have been overturned from the beginning and the due weight of stare decisis simply is not enough to overcome the stifling of free speech.

The documentary in question was about one of the candidates. It boggles my mind that anyone could think stifling it could pass C'l muster. Ugh

Public approval of major social phenomena, the economy, politicians and appointed officials is always apt to wax and wane with time. For the U.S. Supreme Court, though, public opinion is currently waning like a crescent moon.

The Pew Research Center for the People & the Press yesterday released a survey indicating that public opinion of the high court is currently at a quarter-century low. And unlike previous evaluations of the court over the past decade, this time there is very little partisan divide as Republicans, Democrats and independents all responded with relatively unfavorable ratings.

The collapse of Americans' faith in the Supreme Court has been recent but dramatic. Somewhere in between Bush v. Gore and Clarence Thomas's paid appearance at the Koch brothers' retreat and Antonin Scalia comparing surgery to broccoli, Americans noticed that some of the foremost justices in the country are buffoons. Since 2009, public approval of the Supreme Court has declined fifteen percentage points, and according to one survey less than one out of four Americans has confidence in the court's judgment. With the decision on health care scheduled for June, the country's already tenuous regard for the Court may grow even more strained. The idea of the Court as an above-the-fray guardian of the Constitution is, by this point, strictly the stuff of civics classes and nostalgia. In ordinary life, the law has never been held in as much contempt as it is now. Quite simply, nobody follows it anymore.

The list of examples reads like a partisan list. I remember reading about the progressive efforts to paint Thomas and not being impressed that there was much substance to them or much character behind the accusations. Scalia a buffoon? Really? Is Kagan's failure to excuse herself from Obamacare mentioned? Are Ginsburg's non-belief in the Constitution and her efforts to substitute international progressivism for it mentioned? Indeed, is her remarkable conversion to deference to southern state's rights in electoral matters in Bush v. Gore mentioned? Blah, blah, blah.

I read the article's accusation of results driven cases by the "right" Justices in search of any reasoned examples in vain.

Is this a professor thing you're doing here BD? I know you think MUCH better than this.

Your last point was the real take away for me in the article. I think the idea of Americans committing three felonies a day is interesting, and the continued decline adherence to drug laws (of Democratic presidents, I should add, which may balance your concern of the partisan agenda) is also worth noting.

"Your First Amendment rights can be terminated," yells the Chicago police officer, caught on video right before arresting two journalists outside a Chicago hospital. One, an NBC News photographer, was led away in handcuffs essentially for taking pictures in a public place. He was released only minutes later, but the damage was done. Chicago cops suffered an embarrassing "caught on tape" moment, and civil rights experts who say cops are unfairly cracking down on citizens with cameras had their iconic moment.

"The Pew Research Center for the People & the Press yesterday released a survey indicating that public opinion of the high court is currently at a quarter-century low."

Give some credit to the President for calling them buffoons on camera in front of the nation and the world. The recent audio coverage of the healthcare hearing with clips of it in the media was also a strange way for the layman to view their work. They look and sound better behind closed doors.

"there is very little partisan divide as Republicans, Democrats and independents all responded with relatively unfavorable ratings"

Add the dissatisfaction of the left on Citizens United plus Bush v. Gore to how conservatives view the abortion and takings rulings and you have some discontent. I suppose independents just see 4 hardened extremists on each side and one unpredictable justice deciding all close issues.

Meanwhile a divided congress gets about a 14% approval. You would think it would be zero, what is happening there for any side to approve? -------

It is early June with a landmark decision on healthcare coming late this month. I hope veryone who is interested will take the time to write their own healthcare decision. What is the strongest argument of the other side to your decision and what is the crucial argument that trumps that. Bigdog and others, I would love to hear from you, your students or from your readings prior to those 9 people getting the last word.

This suggests the next step is the Supreme Court which will take ? long. Can this be done before November?

"Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These ‘occasion for constitutional confrontation between the two branches’ are likely to be avoided whenever possible.”

It may have very serious implications for the Obama White House. Holder previously testified that President Obama was not directly involved in discussions about Fast & Furious, and President Obama told CNN Espanol in a recorded interview that he had no involvement and only found out about the scandal “on the news.” However, today’s assertion of executive privilege puts both claims in question."

Please note that I am not asserting that the president is involved or not. My "no" was answering the question about executive privilege based solely on presidential involvement (please see the link I provided above for more details).

Rep. Gowdy's Statement on President Obama's invoking Executive Privilege regarding Fast and FuriousBy Rep. Trey GowdyWashington - Today, Rep. Trey Gowdy (SC-4), released the following statement inregards to President Obama’s Executive Privilege on the documents related to Fast and Furious, and the House Committee on Oversight and Government Reform’s investigation.

“The assertion of executive privilege is legally compromised and calculated solely to delay Congress from exercising its constitutional responsibility to provide oversight.”“The President claims he knew nothing about Fast and Furious prior to Agent Brian Terry's murder and no one at the Department of Justice has suggested the President was part of the drafting of a demonstrably false letter dated February 4, 2011, to a committee of congress.”

“So, my question to the President is: What are you asserting privilege over? Did you know about Fast and Furious before Brian Terry's murder? Did you approve the operation? Did you participate in the drafting of a false letter to congress? Unless the answer to all of those questions is yes, there is no matter overwhich the President can assert privilege. It is merely the latest ploy to delay the investigation.”

Rep. Trey Gowdy (SC-4) is a former federal and state prosecutor who prosecuted scores of firearms cases while working for the United States Attorney's Office.==========

More seriously, here's this: (hat tip to a lurking GM for both of these)

Executive Privilege and how the House should move forward legallyby Mark Levin on Wednesday, June 20, 2012 at 2:41pm •

As the Supreme Court recognized in US v. Nixon, the Executive Branch has a legitimate interest in confidentiality of communications among high officials so that the President can have the benefit of candid advice. However, as President Washington himself recognized, that privilege does not protect the President or his underlings from embarrassment or public exposure for questionable actions. As the Supreme Court has also recognized repeatedly, the Congress, in the exercise of its constitutional powers, has the essential power to investigate the actions of the Executive Branch.In this case, the exercise of Executive Privilege seems, in its timing and over-inclusiveness, to be nothing less than a political delaying tactic to prevent exposure of wrongdoing and incompetence that resulted in the murder of a American law enforcement agent and injury and death of many others. Further, a wholesale claim of privilege is facially improper: the President should be held to the standard that anyone claiming privilege is held to: identify each document in a log so that privilege can be disputed. (U.S. v. Nixon, 1974)Because among the categories of documents sought are all those relating to the recantation by Holder of testimony before Congress, the demand goes to the core of the Congressional power under Article I. In this respect, this is not a general or oversight inquiry but a determination of why the Attorney General of the United States testified falsely before Congress about his own knowledge of a federal program. Presumptively, none of this category of documents is protected by Executive Privilege for wrongdoing per se is not protected by the privilege.The right way to proceed is to hold Holder in contempt by resolution of the House and seek authorization from the House for the Committee, by its Chairman, to proceed by civil action to compel production of the documents. (Holder will not enforce a holding of contempt against himself -- and by the way, he should have authorized, say, the assistant attorney general for legal counsel, to handle the contempt matter once the House voted as at that point he is representing his own interests and not those of the nation generally). Chairman Issa should file suit in federal court in DC and seek expedited action. There is no need for Senate action. The use of this procedure has been acknowledged by the Congressional Research Service in a 2007 study. Further, a privilege log should be sought by Issa and ordered produced immediately by the court, in camera inspection done promptly by the judge, and a final order entered compelling production of all documents for which no legitimate reason justifies Executive Privilege.Yes, some documents may be covered by EP, but the blanket attachment of that label flouts the law and the Constitution, and harms the legitimate assertion of EP by Presidents of either party in the future. The Constitution is far too important to be subject to the caprice of this President and an AG who, on its face, wants to be free from scrutiny about why he testified falsely before a Committee of Congress.Executive Privilege is a very important implied executive power, used in various forms since the presidency of George Washington. Therefore, it's misuse and abuse, to cover-up wrongdoing, conceal embarrassing information, or advance a political agenda, diminishes the ability of future presidents to assert it legitimately.

The Obama administration has a narrative about Fast & Furious. The Wall Street Journal obligingly reported it this morning, as follows:The gun-walking tactics in Fast and Furious turned up in earlier ATF cases, during the Bush administration. When they were uncovered by Justice officials in the Obama administration, a top Justice official raised concerns with ATF officials, according to Justice documents released last year. But the officials never alerted Mr. Holder, didn’t do enough to prevent similar cases and weren’t aware the operation was under way until months later, according to Justice documents.Mr. Holder, in a letter last week to Mr. Issa, said, “The record in this matter reflects that until allegations about the inappropriate tactics used in Fast and Furious were made public, department leadership was unaware of those tactics.”There are a variety of reasons to be skeptical of this version of events. To name only two:(a) there were wiretaps in the F&F investigation, and when the government seeks a wiretap, federal law requires it to explain what investigative tactics have been used in the case, an explanation that is vetted by top DOJ officials because the government cannot apply for the wiretap without the approval of the attorney general or his designee (a high Justice Department official) — it seems highly unlikely, assuming DOJ complied with wiretap law, that top Justice Department officials did not know about the gun-walking tactic until late in the game; and(b) the gun-walking tactic — which in F&F involved providing well over a thousand firearms to violent criminals — was shocking, and it is hard to believe that if “Justice officials” knew enough to raise their concerns with the ATF brass, they failed to alert Attorney General Holder or follow through to make sure ATF and the U.S. attorney’s office — both arms of the Justice Department — stopped the tactic.But let’s put all that aside for argument’s sake and assume that the Obama administration’s narrative is true. If this is what really happened, Attorney General Holder does not deserve our condemnation; he deserves a commendation. And if this is really what happened, what are the chances that the administration that can’t shovel national defense secrets out fast enough to the New York Times would withhold a paper trail that covers Mr. Holder in glory?The issue in F&F is not the withholding of DOJ documents. The issue is the reckless provision of an arsenal fit for an army to violent cartels, quite predictably resulting in the murders of possibly hundreds of people including at least one United States law enforcement officer. That is the reason Congress did not go away, as it usually does, when the Justice Department ignores or slow-walks demands for information. What happened here is too grave to take “no” for an answer.If this were a Republican administration, the press would long ago have made the Department’s obstruction of Congress a five-alarm scandal. Bush administration Attorney General Alberto Gonzales was forced to resign over a matter that was less than frivolous compared to F&F. The press is in the tank for Obama, so Holder & Co. have relatively smooth sailing — even when it became clear that they provided blatantly false information to Congress about the use of the gun-walking tactic. Chairman Darrell Issa (R., CA) has been heroic in pursuing this investigation at a time when Republicans have been generally feckless in challenging Obama’s abuses of power.But while Holder has been in the eye of what little storm there was, it has always been the case that F&F is Obama’s scandal. Holder has never done anything other than implement Obama’s policies and manage relations with Congress as Obama wished them to be conducted. Obviously, the hope was that if DOJ was intransigent enough, the House would get frustrated and bored and move on to other things. That hasn’t happened, thanks to Rep. Issa and his colleagues. But the focus on Holder and withheld documents should not obscure that F&F is really about Obama and the murders of a federal agent and hundreds of others — very likely, to promote the Left’s political argument that American Second Amendment rights are the cause of international violence.Because Issa has been dogged, we have now gotten down to brass tacks. The prospect of the attorney general’s being held in contempt finally prompted the president — the only official in the government empowered to assert executive privilege — to claim that the documents sought are being withheld at his (Obama’s) direction, based on his constitutional authority.Executive privilege is a vestige of Richard Nixon’s desperate effort to conceal criminality in the Watergate scandal. The last thing Obama wanted to do, with the November election looming, was resort to the Nixon strategy (which, we should recall, failed in the end). And, again, if the Obama administration’s story was true, they would want to release the documents that support it. They really don’t want you to see what is in those documents.